On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) issued “Proposed Enforcement Guidance on Harassment in the Workplace” (the “Guidance”). If finalized, the Guidance will mark the first time the EEOC has updated its guidance on workplace harassment in nearly 25 years.

The EEOC continues to treat harassment as a serious workplace concern. According to the EEOC, between 2018-2022, 35 percent of the charges of employment discrimination filed with the EEOC included an allegation of harassment based on race, sex, disability, or another protected characteristic. The Guidance accounts for changes in the law and workplaces over the last two decades, and supersedes five earlier versions of EEOC guidance.

Now that the comment period has closed, employers should take note of the detailed Guidance and actively ensure that they taking the necessary steps to prevent harassment.

1. Federal EEO Laws

In 1986, the U.S. Supreme Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that workplace harassment can constitute unlawful discrimination under Title VII of the Civil Rights Act of 1964. The Guidance presents a legal analysis of standards for harassment and employer liability applicable to claims of harassment under the federal equal employment opportunity (“EEO”) laws that prohibit discrimination by employers, including Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act.

As the Guidance emphasizes, these EEO laws prohibit work-related harassment based on sex, race, national origin, color, religion, disability, genetic information, and age (40 or over). For more information regarding state and federal laws relating to discrimination and best practices, readers can consult the Employment Discrimination and EEO Practice Manual by Richard J. Simmons of Sheppard Mullin.

2. Guidance On Sex-Based Harassment

Traditionally, harassment based on sex was largely understood to include unwanted sexual attention or coercion, such as demands or pressure for sexual favors, sexual assault, or sexual remarks/epithets. The Guidance makes clear that the EEOC also considers sex-based harassment to include harassment based on (i) sexual orientation and gender identity, including how that identity is expressed; and (ii) pregnancy, childbirth, or related medical conditions.

a. Sexual Orientation And Gender Identity

The U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., 140 S.Ct. 1731 (2020), held that Title VII’s prohibition on sex discrimination includes discrimination based on gender orientation and sexual identity. In the EEOC’s view, while Bostock only concerned allegations of discriminatory discharge, its reasoning “logically extends” to claims of harassment.

Examples of harassment based on sexual orientation or gender identity include:

•Physical assault;

•Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender;

•Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender (misgendering); or

•Denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

In fact, under the Guidance, harassment against an employee by “customers” who “intentionally misgender” the employee may be considered as part of an employee’s harassment allegation against the employer, particularly where the employer “did not address the harassment and instead reassigned her to duties outside of the view of customers.”

b. Pregnancy, Childbirth, And Related Medical Condition

The Guidance reiterates that harassment based sex may be based upon pregnancy, childbirth, or related medical conditions, which includes lactation. This may also include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion. The EEOC explains that harassment based upon abortion-related decisions can include adverse employment actions against an employee based upon her decision not to have, or to have, an abortion.

3. Guidance On Genetic Information Harassment

In the Guidance, the EEOC states that harassment on the basis of genetic information includes harassment based on a complainant’s, or a complainant’s family member’s, genetic test or family medical history. As examples, the EEOC deems harassing an employee because the employee carries the BCRA gene, which is linked to an increased risk of breast and ovarian cancer, or because the employee’s mother has cancer, as harassment based on genetic information.

4. Guidance On Causation

To establish harassment, the complainant must demonstrate that harassing conduct was because of the complainant’s characteristic(s). This is a critical component of a harassment charge, as the EEO statutes do not prohibit harassment that is not based on a protected characteristic.

The EEOC instructs that in determining whether harassment is based on a protected characteristic, it is necessary to examine the “totality of the circumstances.” Certain indicators of harassment because of a protected characteristic as set out in the Guidance include:

•Facially discriminatory conduct, which explicitly insults or threatens an individual based on a protected characteristic, such as a racial or sex-based epithet or graffiti;

•Stereotyping, or harassing conduct based on social or cultural expectations be they positive, negative, or neutral regarding how persons of particularly protected groups usually act or appear. This includes sex-based assumptions about family responsibilities or suitability for leadership roles or the expression of sexual orientation or gender identity.

•Contextual clues, such as harassment that begins or escalates after the harasser learned of the protected status and disparate treatment between individuals in different protected groups.

5. Guidance On Hostile Workplace Harassment

For an employer to be liable under an EEO statute for workplace harassment based on a protected trait, the harassment must affect a “term, condition, or privilege” of employment. This can take the form of (1) an explicit change to the terms or conditions of employment that is linked to harassment based on a protected characteristic, such as firing an employee because the employee rejected sexual advances; or (2) conduct that constructively changes the terms or conditions of employment by creating a “hostile work environment.”

To create a hostile work environment, the harassment must, as a whole, be “sufficiently severe or pervasive,” both objectively and in the mind of the complainant. Whether conduct creates a hostile work environment depends on the totality of the circumstances, and no one factor is determinative.

a. Single Incident Hostile Work Environment

The Guidance sets out certain examples of a hostile work environment based upon a “single incident” of harassment:

•Sexual assault;

•Physical violence or the threat of physical violence;

•The use of symbols of violence or hatred, such as a swastika, image of a Klansman’s hood, or a noose;

•The use of animal imagery that denigrates individuals sharing a protected characteristic;

•A threat to deny job benefits for rejecting sexual advances; and

•A supervisor’s use of a racial epithet in the presence of an employee in that protected class.

b. Objectively Hostile Conduct

In addition to be “subjectively hostile,” that is, conduct the complainant personally believes is hostile, to be actionable, the conduct must also be “objectively hostile.” Again, the EEOC instructs employers to consider the impact of conduct in the context of “surrounding circumstances, expectations, and relationships.” This determination, the EEOC explains, requires “an appropriate sensitivity to social context.”

In the context of religious expression, employers must balance their duty to accommodate with their duty to avoid a hostile work environment. While employers must accommodate employees’ sincerely held religious beliefs and practices absent undue burden, the Guidance clarifies that they are not required to accommodate religious expression that creates a hostile work environment. For instance, if a religious employee attempts to persuade another employee of the correctness of his beliefs, the conduct is not necessarily objectively hostile. But, if the employee objects to the discussion yet the other employee nonetheless continues or escalates, that could be found to be hostile conduct.

c. Technology And The Virtual Work Environment

A hostile work environment claim may include conduct that occurs in a work-related context outside an employee’s regular workplace. The Guidance provides that conduct also occurs within the work environment if it is conveyed using work-related communication systems, such as e-mail, video technology, or instant messaging systems. Conduct within the virtual work environment, such as a video meeting, is no different in the EEOC’s eyes than conduct in the physical work setting.

Harassing conduct in the virtual work context can include:

•Sexiest comments during a video meeting;

•Racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting; or

•Sexual comments made during a video meeting about a bed being near an employee in the video image.

The Guidance further sets out how conduct that does not occur in a work-related context, such as on personal social media pages, can affect terms and conditions of employment by impacting the workplace. As an example, if an employee is the subject of ethnic epithets that a coworker posts on a personal social media page, and either the employee learns about the post directly or other coworkers see it and discuss it at work, then that post can contribute to a racially hostile work environment.

6. Guidance On Effective Anti-Harassment Policy

The EEOC emphasizes how an employer’s ability to demonstrate that it exercised reasonable care to prevent and correct promptly any harassment and that an employee unreasonably failed to use those preventative measures can provide a defense to liability or damages in many types of harassment cases. To help satisfy the employer’s duty to show reasonable care that the employee failed to use, the Guidance considers the existence of an effective anti-harassment policy to be a critical factor.

The Guidance also lays out the EEOC’s views on what makes an anti-harassment policy effective:

•It defines the prohibited conduct;

•It is widely disseminated;

•Is comprehensible to workers;

•Requires that supervisors report harassment they are aware of;

•Offers multiple avenues to report harassment;

•Clearly identifies accessible points of contact to whom reports should be made; and

•Explains the employer’s complaint process, including anti-retaliation and confidentiality protections.

But beyond an effective policy, the Guidance discusses how additional factors go into evaluating whether an employer implemented reasonable and effective measures to prevent and correct harassment, such as: regularly providing effective training on the policy, removing barriers to filing complaints, promptly investigating complaints of harassment, taking appropriate corrective action, ensuring no retaliation, and monitoring the workplace to ensure ongoing adherence to the policies.

7. Guidance On Temporary Employment Agencies

The Guidance also addresses the differing responsibilities an employer has where an individual is assigned by a temporary employment agency to work for a client. If the worker complains about harassment to the client and temporary employment agency, the EEOC instructs that both entities would be responsible for taking corrective action, but do not need to take duplicative action.

As to temporary employment agencies, the EEOC’s Guidance directs that corrective action may include:

•Ensuring the client is aware of the alleged harassment;

•Insisting the client conduct an investigation and take appropriate corrective action on its own;

•Working with the client to jointly conduct an investigation and/or identify appropriate corrective measures;

•Following up and monitoring to ensure that corrective measures have been taken; and

•Providing the worker with the opportunity to take another job assignment at the same pay rate, available.

8. Conclusion

The EEOC’s Guidance is not yet final and still technically subject to change. Even so, the Guidance provides employers with insightful information and detail from the federal agency charged with enforcing federal EEO laws on how it understands, enforces, and interprets those very laws. Employers should take heed of the agency’s Guidance and actively ensure that they have strong, effective, and lawful anti-harassment policies and procedures in place.

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About The Author

Tyler Z. Bernstein is a Partner with Sheppard, Mullin, Richter & Hampton LLP in the firm’s Orange County Office. Mr. Bernstein represents employers of all industries in state and federal court. Tyler’s practice extends to the business law context, as he has extensive experience successfully defending against “bet the company” commercial litigations and arbitrations. Tyler regularly defends employers in wage and hour class actions and representative litigations and has extensive experience defending against claims of discrimination, harassment, retaliation, wrongful termination, breaches of contract, and other related matters. Tyler also provides general preventative advice and counseling to employers relating to labor and employment issues.